23 mai, 2007

The European Court of Human Rights (ECHR) was created some fifty years ago to check compliance by Member States of the Council of Europe with the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention).

ECHR was made a full-time court, with private access by individuals and jurisdiction mandatory, as of November 1, 1998. Thereafter, ECHR has become a tool for European citizens to benefit from an effective guarantee for respect of Human Rights The number of applications rose from 12.700 in 1996 to 50.500 in 2006.

96 percent of applications are summarily rejected by ECHR. One third of all applications are dismissed on administrative grounds. The remainder is generally dismissed by a three judge filtering committee making unmotivated decisions notified to applicants by a standard letter from the Clerk.

Specialists are now debating about bias and/or partiality and politics of ECHR, watching judgments for judges’ predispositions and/or considerations other than the law.

Governments influence ECHR line through the choice of candidates who are selected so as to fit in a frame of mind suiting the government’s purposes. In effect the judicial ideology of ECHR judges mirrors most often the political ideology of the governments which appointed them. Besides, judges come from official circles and they are likely to respond favourably to their government’s solicitations, in order to ensure their presentation for a new election at the end of their six years term, or to improve their career later.

Judges in ECHR may be divided into two categories, one which includes those who are inclined to rule in favour of applicants and against a government on one hand, and the other judges who are on the opposite side and who show restraint when ruling against a Member State on the second hand. The former may be classified “activists” and the others “self-restrained”. The increased activism in ECHR is likely to be due to appointments of activist candidates selected by countries aspiring to EU membership. Appointment of an activist judge is a way to signal commitment to Human Rights and Europe. Besides, countries favourably disposed towards European integration tend also to select activists judges candidates.

An appearance of possible national bias exists apparently because the Rules of Court provide that the judge appointed by a country shall sit on the bench in any case where his country is the defendant. This should put en end in favour of reality to the bias debate in Britain about appearance vs. reality.

In various cases ECHR has used the vague concept of “margin of appreciation” to deal with controversial issues. In other instances where ECHR found cases inadmissible, decisions could be explained only by the political concern of not angering a defendant Member State. In the opposite, cases have been dealt with for political willingness to please general public opinion by condemning a Member State.

To achieve the above, ECHR has played with article 35 of the Convention providing that individual requests must be lodged within a six months period after exhaustion of domestic remedies. In certain cases, ECHR has decided that the rule did not play if enough reasonable efforts had been spent by the applicants to its satisfaction. In other cases, on the contrary, applications have been dismissed as being late though they were not ; because dismissals by a filtering committee are not made public, the known cases are extremely rare. There is one however where the committee has dismissed an application on grounds it was late by taking into consideration an interim decision from a Court of Appeals whereas it did not noteretain the true date of the final decision from the Supreme Court. That case dishonours ECHR and shall be appealed against where-ever it may be.

Under the Human Rights Act 1998, UK has granted authority to ECHR case law. An ECHR judgment coming before a British court could modify the effect of any relevant statutory instrument so as to bring it into conformity with that judgment, provided that this can be done consistently with the provisions of the applicable *primary* legislation. This exposes Britain to be governed in part by judgments made by foreign judges without home grown British law.

Judgments made in Strasbourg should be subject to further research same as the ways to reform ECHR. At present ECHR is crumbling under the weight of a backlog of about 90.000 cases which is increased daily by about 140 new applications. It is obvious that the task cannot be handled by 47 judges.